Pio Press: Why weren't Gophers football players charged with sex assault? Here's why

[noamfromm]

http://www.twincities.com/2016/12/19/legal-experts-on-gophers-football-much-has-been-misunderstood/

Palmer said a required course for all students would be helpful.

“A lot of students don’t come to college prepared to handle sex beyond the mechanics of not getting pregnant. They’re not taught about relationships, consent and respect,” she said. “We know such hesitancy does youth a great disservice, which is not to shift blame to the schools but to say we don’t equip youth to handle these situations well.

“You’d hope students 18, 19, 20 years old would have a basic understanding of these things, but this (report) shows that isn’t always the case.”

 

[noamfromm]

maybe I am misinterpreting, it seem to me she is claiming that these 18-19-20 year old students do not know about consent and respect. With the implication being that these students clearly has sex without consent and had no respect. my comment is looking to ascertain whether or not some find her statements leading.

 

[Bob_Loblaw]

Yeah, this was an extremely poorly written article.

It does an extremely poor job of discussing the due process issue. It makes the mistake of confusing a process with due process. It also completely butchers the discussion of burden. They sort of explained it right this time. . "One of the most important concepts in all of this is that a prosecutor cannot bring charges against a suspect unless that prosecutor believes that the case can be proven beyond a reasonable doubt."

(a) This is simply not the way things are done in the real world. It would be virtually impossible to charge most defendants with sexual assault.
(b) The standard is "will you, at some point in the future, have enough evidence to convict beyond a reasonable doubt?" It's the reason why the Grand Jury standard is probable cause. A grand jury essentially answers the question "are charges valid, should we keep going?". If BARD was the standard at the time of charging, why would a grand jury's standard be probable cause.


She added this, just god awful, nugget: "There are a number of reasons a case might not go to trial, Gaertner said, such as a negotiated settlement. Trials are expensive, she added, and sometimes victims don’t want to feel “re-victimized.”"

Is Ms. Gaertner implying that Hennepin County, and Michael Freeman would not pursue a high profile sexual assault case because of the COST OF THE TRIAL? That is a crazy notion. I have to believe the quote was taken out of context and she never meant for it to apply to this case. There could be a lot of reasons why they chose to not file charges, but the cost of trial did not factor in here.

As to the "re-victimization" thing. . . what? I'm not ripping on the alleged victim. But that concern was really at issue here. And good for her, if she really is a victim, I applaud her for going after these guys so diligently.

As far as the articles discussion of due process. . . it is about the accused. It's about a fair process before the gov't takes away life, property, or liberty. By definition, it's about the accused. I don't know where they were going with that point.

 

[Gogogopher]

Yeah, this was an extremely poorly written article.

It does an extremely poor job of discussing the due process issue. It makes the mistake of confusing a process with due process. It also completely butchers the discussion of burden. They sort of explained it right this time. . "One of the most important concepts in all of this is that a prosecutor cannot bring charges against a suspect unless that prosecutor believes that the case can be proven beyond a reasonable doubt."

(a) This is simply not the way things are done in the real world. It would be virtually impossible to charge most defendants with sexual assault.
(b) The standard is "will you, at some point in the future, have enough evidence to convict beyond a reasonable doubt?" It's the reason why the Grand Jury standard is probable cause. A grand jury essentially answers the question "are charges valid, should we keep going?". If BARD was the standard at the time of charging, why would a grand jury's standard be probable cause.


She added this, just god awful, nugget: "There are a number of reasons a case might not go to trial, Gaertner said, such as a negotiated settlement. Trials are expensive, she added, and sometimes victims don’t want to feel “re-victimized.”"

Is Ms. Gaertner implying that Hennepin County, and Michael Freeman would not pursue a high profile sexual assault case because of the COST OF THE TRIAL? That is a crazy notion. I have to believe the quote was taken out of context and she never meant for it to apply to this case. There could be a lot of reasons why they chose to not file charges, but the cost of trial did not factor in here.

As to the "re-victimization" thing. . . what? I'm not ripping on the alleged victim. But that concern was really at issue here. And good for her, if she really is a victim, I applaud her for going after these guys so diligently.

As far as the articles discussion of due process. . . it is about the accused. It's about a fair process before the gov't takes away life, property, or liberty. By definition, it's about the accused. I don't know where they were going with that point.

So the view of a prosecutor with 16 years of experience is wrong? Wouldn't she have a pretty good idea how this works?

 

[STPGopher]

So the view of a prosecutor with 16 years of experience is wrong? Wouldn't she have a pretty good idea how this works?

Assuming there is fault or inaccuracy, could the fault lye with the one reporting/ quoting?

 

[Gogogopher]

Assuming there is fault or inaccuracy, could the fault lye with the one reporting/ quoting?

It's not wrong. I spoke with a Judge who is a former prosecutor and a public defender, they both said that ability to convince a jury was a primary factor in deciding to press charges. Yes the standard to bring charges is lower. But in practice, in the real world, prosecutors bring charges when they have a good case. Think about it, how are you going to persuade someone to plea bargain if they know you don't have a good case assembled against them?

See the study below stating there is general agreement in the research that prosecutors only file sex assault cases when they perceive odds of success are high, and they are more likely to if the victim
is "blameless".

Here is a quote from the Pioneer Press article announcing no criminal charges would be filed against the gophers in this case:

“There is insufficient admissible evidence for prosecutors to prove beyond a reasonable doubt that either force was used, or that the victim was physically helpless as defined by law in a sexual encounter,” the county attorney’s office said Monday."

http://www.twincities.com/2016/10/03...investigation/



This is from a study titled:
Prosecuting Sexual Assault: A Comparison of
Charging Decisions in Sexual Assault Cases
Involving Strangers, Acquaintances, and
Intimate Partners*

"Although there is general agreement that prosecutors’
attempts to avoid uncertainty (Albonetti, 1986; 1987) and “downstream orientation” to judges and juries (Frohmann, 1997) lead them to file charges only when the odds of conviction at trial are high, less agreement can be found on factors that define or determine convictability."

"Prosecutors were more likely to file charges if there was physical
evidence to connect the suspect to the crime, if the suspect had a prior criminal record, and if there were no questions about the victim’s character or behavior at the time of the incident. This suggests that prosecutors’ concerns about convictability lead them to file charges when they believe the evidence is strong, the suspect is culpable, and the victim is blameless. "

here is a link to the study:

https://www.ncjrs.gov/pdffiles1/nij/199720.pdf

Here is quote from a prosecutor:
I am one of several lawyers working as prosecutors in the office of the State’s Attorney. While we all agree that a case should be dropped as soon as it becomes clear that there is little or no likelihood of winning a conviction, some of us think that a prosecutor may make an exception when that might bring about a better outcome, and I’d appreciate having your thoughts on the problem.

http://www.twotlj.org/G-3-178.html

Here's a prosecutor saying he won't charge because he has to consider the possibility of success

According to a transcript of that meeting, Ebrahim said it wasn’t his job to say whether or not he believed Reed, or tell her whether or not she had been raped. He explained that no one who had experienced a sex crime, or who had ever been accused of one, would end up sitting on the jury. So his job was to filter out cases in which 12 jurors, who “have no experience in any kind of sex crimes occurring in their life,” would concur beyond a reasonable doubt that a rape had taken place.

“And that is a mountain that is going to be very hard to climb in front of a jury in trying to prove this case beyond a reasonable doubt,” Ebrahim said. “That’s the main problem here.”

“I need to clarify,” Reed pressed, “Regardless of the evidence that I have presented, you are worried about the way the jury is going to react to the evidence, and therefore screening out my case?”

“Yes,” Ebrahim responded. “I have to take into account what the jury’s going to do. I can’t just proceed on a case not taking into account what a reasonable jury would do, absolutely.”

http://www.huffingtonpost.com/2014/0...n_5500432.html



Happy Holidays

SKI U MAH!!

 

[PMWinSTP]

So the view of a prosecutor with 16 years of experience is wrong? Wouldn't she have a pretty good idea how this works?

How about this...there were no arrests or charges because the DA determined those actions would not produce any additional information or evidence in getting closer the the BARD threshold?

 

[Gogogopher]

How about this...there were no arrests or charges because the DA determined those actions would not produce any additional information or evidence in getting closer the the BARD threshold?

Well this is what the county attorney's office said when declining to press charges.

“There is insufficient admissible evidence for prosecutors to prove beyond a reasonable doubt that either force was used, or that the victim was physically helpless as defined by law in a sexual encounter,” the county attorney’s office said Monday."

http://www.twincities.com/2016/10/03...investigation/

Yes, more info will be collected. The former prosecutor I talked to said if the case wasn't strong, they would ask the police for more evidence, before they filed charges. Why would they assume more evidence was there? I am not saying they never charge and collect more evidence, and I am not saying they always only charge if they are confident they can prove the case beyond a reasonable doubt. But there is a lot of support for the fact that a primary consideration for prosecutors is the likelihood of being able to convince a jury beyond a reasonable doubt before they charge someone.

Did you look at the post immediately above your comment?

 

[PMWinSTP]

Well this is what the county attorney's office said when declining to press charges.

“There is insufficient admissible evidence for prosecutors to prove beyond a reasonable doubt that either force was used, or that the victim was physically helpless as defined by law in a sexual encounter,” the county attorney’s office said Monday."

http://www.twincities.com/2016/10/03...investigation/

Yes, more info will be collected. The former prosecutor I talked to said if the case wasn't strong, they would ask the police for more evidence, before they filed charges. Why would they assume more evidence was there? I am not saying they never charge and collect more evidence, and I am not saying they always only charge if they are confident they can prove the case beyond a reasonable doubt. But there is a lot of support for the fact that a primary consideration for prosecutors is the likelihood of being able to convince a jury beyond a reasonable doubt before they charge someone.

Did you look at the post immediately above your comment?

Yes, as it has been posted numerous times on different threads. Did you read the post explaining the Grand Jury threshold?

 

[Gogogopher]

Yes, as it has been posted numerous times on different threads. Did you read the post explaining the Grand Jury threshold?

I am talking about prosecutorial discretion involved in deciding to charge a case or not. I know the grand jury standard, I have heard a prosecutor say he could indict a sandwich. But they don't do that, they seriously consider the if they will be able to convince a jury.

You are not responding to the argument, or the evidence cited in my post. You say it has been posted several times. Yes, I posted it several times because it has never been responded to. And because the evidence is overwhelming that prosecutors very strongly consider if they can convince jury beyond a reasonable doubt.

 

[PMWinSTP]

Well this is what the county attorney's office said when declining to press charges.

“There is insufficient admissible evidence for prosecutors to prove beyond a reasonable doubt that either force was used, or that the victim was physically helpless as defined by law in a sexual encounter,” the county attorney’s office said Monday."

http://www.twincities.com/2016/10/03...investigation/

Yes, more info will be collected. The former prosecutor I talked to said if the case wasn't strong, they would ask the police for more evidence, before they filed charges. Why would they assume more evidence was there? I am not saying they never charge and collect more evidence, and I am not saying they always only charge if they are confident they can prove the case beyond a reasonable doubt. But there is a lot of support for the fact that a primary consideration for prosecutors is the likelihood of being able to convince a jury beyond a reasonable doubt before they charge someone.

Did you look at the post immediately above your comment?

Additionally, the police only need probable cause to arrest. None were arrested. Prosecutorial discretion allows for a lot of latitude. That's why they often include multiple levels of offenses when indicting. It's how pleas happen. It works.

 

[Deleted_User]

Innocence is also a reasonable duty to consider by a prosecutor. In this case, they may have considered it, but their public statements do not associate well with a judgement of innocence by the prosecutors office. So, this is where the University has a right to conduct its own internal investigation, take record of participants, and make a determination on whether to discipline said students. And, the students have the right to address the charges and to respond in whatever manner affords them opportunity to not have discipline assessed against them. I truly doubt any court is going to agree with the players that they were not afforded due process. They were invited to respond to the charges and bring forth any facts related to their defense and bring it to issue. In the past 4 years, rape has not occurred very often but has occurred 14 other times mostly in 2012 and 2013 according to statistics of the US Department of Education. Most criminal code cases were of alcohol violations in housing and a few off housing incidents. The number of cases decided is in the hundreds per year. None of those cases involved Title IX and were not challenged in courts of law, even though they related to criminal behavior.

If due process and title IX are central to the argument for the athletes, they will have to mount a very limited challenge and ignore the fact that the U has decided on more than one area of the law where non athletes are confronted with code of conduct inquiries on almost a daily basis.

 

[Gogogopher]

Innocence is also a reasonable duty to consider by a prosecutor. In this case, they may have considered it, but their public statements do not associate well with a judgement of innocence by the prosecutors office. So, this is where the University has a right to conduct its own internal investigation, take record of participants, and make a determination on whether to discipline said students. And, the students have the right to address the charges and to respond in whatever manner affords them opportunity to not have discipline assessed against them. I truly doubt any court is going to agree with the players that they were not afforded due process. They were invited to respond to the charges and bring forth any facts related to their defense and bring it to issue. In the past 4 years, rape has not occurred very often but has occurred 14 other times mostly in 2012 and 2013 according to statistics of the US Department of Education. Most criminal code cases were of alcohol violations in housing and a few off housing incidents. The number of cases decided is in the hundreds per year. None of those cases involved Title IX and were not challenged in courts of law, even though they related to criminal behavior.

If due process and title IX are central to the argument for the athletes, they will have to mount a very limited challenge and ignore the fact that the U has decided on more than one area of the law where non athletes are confronted with code of conduct inquiries on almost a daily basis.

Not only a reasonable duty, but an ethical obligation. It would violate the rules of professional conduct to bring charges against someone who is innocent, I am pretty sure.

I assume 14 times at the U?

 

[PMWinSTP]

Not only a reasonable duty, but an ethical obligation. It would violate the rules of professional conduct to bring charges against someone who is innocent, I am pretty sure.

I assume 14 times at the U?

Not what the post was getting at, but since you went there...

http://www.innocenceproject.org/

 

[Deleted_User]

Not only a reasonable duty, but an ethical obligation. It would violate the rules of professional conduct to bring charges against someone who is innocent, I am pretty sure.

I assume 14 times at the U?

Yes, that is what the stats from the Department of Education stated, there were 14 rapes occurring mostly in 2 years, but not the most recent reported year.

 

[Gogogopher]

And the student who filmed the 17 year old involved in sex could be brought upon child porn charges? (Won't happen, shouldn't happen).

"Also, she added, the player who filmed the recruit’s participation and disseminated video among friends — as revealed in the police report — “could potentially be charged for creating child pornography under 617.246.”

http://www.twincities.com/2016/12/19/legal-experts-on-gophers-football-much-has-been-misunderstood/

 

[CentralGopher]

I'm still just confused why everyone read the report that was released and immediately treated the accused players as if they were guilty and the pd investigation was worthless. I dont think I've read a single article that doesnt take the report as fact even though there were assumptions and guesses made by the report and stated as such in it. I'm not saying they are innocent by any means and think likely the truth is somewhere in the middle but coverage of this whole thing has been very slanted since the report was released.

 

[Genious]

I'm still just confused why everyone read the report that was released and immediately treated the accused players as if they were guilty and the pd investigation was worthless. I dont think I've read a single article that doesnt take the report as fact even though there were assumptions and guesses made by the report and stated as such in it. I'm not saying they are innocent by any means and think likely the truth is somewhere in the middle but coverage of this whole thing has been very slanted since the report was released.

If you were paid to take a side publicly and your job depended on whether too many people started hating you for your stance (e.g. your average columnist), which side would you deem safer to take? My gut is starting to tell me there's going to be some turning point down the road where lots of people start backpedaling and conveniently forgetting they wrote the columns that have been published in recent days.

 

[Deleted_User]

Full disclosure, I disagree that there is a major problem within the University of Minnesota for due process. I believe the lawyers have badly agued that the due process is failing outside the U, somewhere in the prosecutors office, who may benefit from an EOAA report. As I have stated here earlier, the U did not release the report to the public, discuss the proceedings of the investigation, other than release a statement regarding football that the 10 players were suspended from the team. As I recall, a suspension is a short term issue that they may not attend the U for a period of time related to a violation of the rules. I confirmed it with the Registrar that the information is never added to a transcript. In the last several days, the lawyers participating on GH were all talking as if the U participated in some due process hanky panky against the players. Not so. Not proven. Not brought to justice in any manner. The procedure is not even complete and the outcome still provisional. If it is provisional, it is not a finished process.

The players were given a chance to understand they had a right to counsel if they read anything about the process in the last few months, including material provided to them from the EOAA. And, anybody in this situation might be always prudent to bring an attorney with to tell them to shut TFU.

If this is a new Miranda moment, I am perfectly okay with that. Bring it on! Make it a right of the student body everywhere. But, don't play it off like they never were afforded that right by the University. The question would need to be asked who is responsible for paying for this attorney? The U? Most likely not. The public defenders office? Again, most likely not. As this is an institution of higher learning making a case to expel students for violating policy, mandated policy at that from Title IX, maybe you intrepid lawyers need to belly up some time to run for the House of Representatives to write a rule in Title IX code for funding mechanisms for these public defenders of the poor student body on charges of sexual misconduct for representation in code of conduct hearings, in the cases of sexual misconduct.

As for me, I don't think the U is at fault for any lack of "due process" given its mission, resources, and external mandated requirements. Let's recognize they are not a court of law. The Minnesota courts can determine what evidence is not fruits of the poison tree or apartment complex.

 

[PMWinSTP]

Full disclosure, I disagree that there is a major problem within the University of Minnesota for due process. I believe the lawyers have badly agued that the due process is failing outside the U, somewhere in the prosecutors office, who may benefit from an EOAA report. As I have stated here earlier, the U did not release the report to the public, discuss the proceedings of the investigation, other than release a statement regarding football that the 10 players were suspended from the team. As I recall, a suspension is a short term issue that they may not attend the U for a period of time related to a violation of the rules. I confirmed it with the Registrar that the information is never added to a transcript. In the last several days, the lawyers participating on GH were all talking as if the U participated in some due process hanky panky against the players. Not so. Not proven. Not brought to justice in any manner. The procedure is not even complete and the outcome still provisional. If it is provisional, it is not a finished process.

The players were given a chance to understand they had a right to counsel if they read anything about the process in the last few months, including material provided to them from the EOAA. And, anybody in this situation might be always prudent to bring an attorney with to tell them to shut TFU.

If this is a new Miranda moment, I am perfectly okay with that. Bring it on! Make it a right of the student body everywhere. But, don't play it off like they never were afforded that right by the University. The question would need to be asked who is responsible for paying for this attorney? The U? Most likely not. The public defenders office? Again, most likely not. As this is an institution of higher learning making a case to expel students for violating policy, mandated policy at that from Title IX, maybe you intrepid lawyers need to belly up some time to run for the House of Representatives to write a rule in Title IX code for funding mechanisms for these public defenders of the poor student body on charges of sexual misconduct for representation in code of conduct hearings, in the cases of sexual misconduct.

As for me, I don't think the U is at fault for any lack of "due process" given its mission, resources, and external mandated requirements. Let's recognize they are not a court of law. The Minnesota courts can determine what evidence is not fruits of the poison tree or apartment complex.

The Chair of the BoR seems to disagree on due process at the U in these types of situations...

On Gophers players facing penalties without first having a hearing:

"When someone is suspended without hearing – and I think that’s the gist of why the football team decided to boycott; they felt there had been allegations without hearing. I’ve talked to [university President Eric Kaler] about this many times, that somehow we need to take a look at that notification hearing process. You know the old adage, ‘You’re innocent until proven guilty?’ I’m not sure that was true in this case. Their pictures are across the wide spectrum and people just assume they were guilty.”

 

[Gogogopher]

Full disclosure, I disagree that there is a major problem within the University of Minnesota for due process. I believe the lawyers have badly agued that the due process is failing outside the U, somewhere in the prosecutors office, who may benefit from an EOAA report. As I have stated here earlier, the U did not release the report to the public, discuss the proceedings of the investigation, other than release a statement regarding football that the 10 players were suspended from the team. As I recall, a suspension is a short term issue that they may not attend the U for a period of time related to a violation of the rules. I confirmed it with the Registrar that the information is never added to a transcript. In the last several days, the lawyers participating on GH were all talking as if the U participated in some due process hanky panky against the players. Not so. Not proven. Not brought to justice in any manner. The procedure is not even complete and the outcome still provisional. If it is provisional, it is not a finished process.

The players were given a chance to understand they had a right to counsel if they read anything about the process in the last few months, including material provided to them from the EOAA. And, anybody in this situation might be always prudent to bring an attorney with to tell them to shut TFU.

If this is a new Miranda moment, I am perfectly okay with that. Bring it on! Make it a right of the student body everywhere. But, don't play it off like they never were afforded that right by the University. The question would need to be asked who is responsible for paying for this attorney? The U? Most likely not. The public defenders office? Again, most likely not. As this is an institution of higher learning making a case to expel students for violating policy, mandated policy at that from Title IX, maybe you intrepid lawyers need to belly up some time to run for the House of Representatives to write a rule in Title IX code for funding mechanisms for these public defenders of the poor student body on charges of sexual misconduct for representation in code of conduct hearings, in the cases of sexual misconduct.

As for me, I don't think the U is at fault for any lack of "due process" given its mission, resources, and external mandated requirements. Let's recognize they are not a court of law. The Minnesota courts can determine what evidence is not fruits of the poison tree or apartment complex.

YES. I wish the players had heard this analysis before they launched the boycott. If the players had heard from attorneys that represented a different point of view calmer heads may have prevailed. Same with Tracy Claeys tweet.